stitution of a superior by human authority must be made in some other manner than by a law. In what manner can human authority be exerted? Shall we say that it may be exerted in a covenant or engagement? Let us say, for we may say justly, that it may. Let us suppose the authority to be exerted, and the covenant or engagement to be made. Still the question recurs, can this authority so exerted, can this covenant or engagement so made, produce a superior? "If he is now entitled to that appellation, he must be so by virtue of something which he has received. But has he received more than was given? Could more be given than those who gave it possessed? "We can form clear conceptions of authority, original and derived, entire and divided into parts; but we have no clear conceptions how the parts can become greater than the whole; nor how authority that is derived can become superior to that authority from which the derivation is made." (Wilson's Works, vol. 1, pp. 65, 83, 85.) Even the social contract doctrine has been rejected by American writers on the ground that it supposes a sovereign power created by the contract. "It is asserted by many republican writers, that government is founded on a contract between the rulers and the ruled; the first undertaking the care of rule, in consideration of the honor and advantages of the station; the other undertaking to obey, in consideration of the preservation by these rulers of safety and good order. This, however, is not exactly in coincidence with the doctrine of the American people; they look on the body politic, that is, the people as the master, and the rulers as the servants of the people; servants amenable to censure, subject to be displaced, and possessing no rights which can set them above the correction of the state. The iegislative, executive, and judicial bodies, therefore, are not with us the repositories of the sovereign power; this resides essentially in the people. (D. Hoffman, Legal Outlines, p. 377.) (12) That we should live honestly, should hurt nobody, and should render to every one his due, page 40. Blackstone's use of "honestly," to translate the Latin honeste in this maxim, has been criticised by Professor Christian and many others. Christian suggests "honorably," or "with decorum," terms hardly applicable to legal duties, as now understood. The same may be said of "reputably," which is the substitute of Mr. Serjeant Stephen, in his New Commentaries, vol. 1, p. 23, n. The ancient scholiast on the passage (Basilica, lib. 2, tit. 1, 10) gives as breaches of this rule dishonesty (furtum), adultery, and disparagement in marriage. No English word expresses this wide range of degrading acts, but none can be found that negatives them all better than "honest" in its older and fuller sense. A more striking mistranslation common to B., with all other English writers whose treatment of these maxims I have seen, and unnoticed by criticism, is the phrase "hurt nobody" for neminem lædere. A sheriff could hardly execute a criminal without hurting him; and indeed all punishments are intended to hurt the persons deserving them. The proper translation would seem to be "to injure no one." This certainly is a maxim of law: to hurt no one can hardly be so considered. The Latin verb lædere is undoubtedly used in both meanings, but in the jurists the latter decidedly predominates, as we see it used in the often quoted sentence of Papinian, "quæ facia lædunt piętatem, existimationem, verecundiam nostram, et ut generaliter dixerim, contra bonos mores fiunt, nec facere nos posse credendum est" (1. 15, D. 28, 7), and in the still more familiar phrase of "læsa majestas" (1. 3, 28, D. 48, 4): "crimen læsæ religionis." (c. 1, C. 9, 19.) So also in the Latin of modern jurists: "Qui quid facit contra jus alterius eum lædit. (Wolf, Jus Naturæ, 1, 2 920.) (13) Quod naturalis ratio inter omnes homines constituit vocatur jus gentium, page 43. Blackstone's use of this quotation has been justly criticised, because the jus gentium of the original does not mean the law of nations as he understands it. It would be difficult to find in classic Roman law any such conception as that of the law of nations in a modern sense. It owes its origin to that broad view of all peoples, at least of all Christian peoples, as mutually related to each other and composing a single body, which was unknown to the ancients. But in the mediæval sense of the words the quotation expresses exactly the doctrine for which Blackstone uses it. The law of nature was binding not only upon all individuals as such, but also upon all states or aggregates of individuals, and upon their sovereigns, the rulers of the earth. However great the power with which God had entrusted them, they were equally subject to the law of nature with their meanest subjects. Hence the law of nations was only the law of nature applied to the relations of states, and supplemented by the mutual compacts, treaties, leagues, and agreements between these several communities; as in each state it was supplemented by the positive laws of the sovereign. It is now well understood that this grand conception long antedated the work of Grotius. If it did not originate in the theory of an imperial power governing all Christian men, of which the pope was the spiritual and the emperor the temporal head, that theory was at least of the greatest service in diffusing it, and may be said to have first given it definite shape. Even though we must regard the doctrine of a law of nature governing nations and individuals alike as a fiction, so far as the qualities of positive law were attri buted to it; yet it must be owned that it was one of the grandest conceptions that ever entered the human mind, and that it proved of invaluable service in the improvement of the laws and customs of national intercourse. It was the necessary complement of feudalism; for it supplied a bond of union and a measure of mutual rights and duties between the states which feudalism had created, but which feudalism had no power to unite in a single body. The entire force of that system was spent in compactly organizing the single state, larger or smaller, with a sovereign at its head. The bond of fealty, most effective in the lower ranks, was not strong enough to bind those at the head of the various states to any such superior. On a large scale its influence was rather disintegrating than cohesive. The emperor never had an effective control of his powerful vassals: and even the large kingdoms were often only loose aggregations of provincial lords, each with more effective strength than his nominal suzerain. The conception of a law of nations, from which no degree of power could free the most ambitious lord or king, furnished the necessary basis of all our modern states. That conception, of course, has disappeared with the law of nature: and the question whether there is any law of nations has been one of the stock subjects of modern juridical discussion. The chief difficulty here, as in many other cases, has grown out of the retention of one part of the theory and the rejection of the rest. If we still hold to the requirement of a law-giver, a sovereign by whom alone binding rules can be imposed, we look in vain for any power capable of giving law to independent nations. Therefore Mr. Austin and all his school commit this law to the limbo of positive morality. Some of them rather inconsistently admit that the treaties, compacts, etc., of different states constitute a positive law of nations, while rejecting the natural law. It is not easy to see upon their own defi nitions why a compact between sovereigns, or even the voluntary obedience to rules and principles based on such compacts, should constitute law. The case is precisely analogous to that of private contracts in municipal law; and these have been generally excluded from the conception, in spite of the very strong resemblance between the rights and duties thus created between the immediate parties to the compact and those imposed by a law: in spite even of the fact that most of the rights and obligations enforced in modern courts of justice owe their origin to private contracts and not to general rules. The question is thus seen to be one merely of definition. All civilized nations, at least, recognize certain principles as governing their mutual intercourse. These are not merely ethical laws. The distinction between enforcible law and ethics is as clearly recognized here as in a single state. Even the absence of any common tribunal for the enforcement of such law does not destroy the distinction. Each nation discriminates between the claims which it may make for fair dealing, for gratitude, or the return of favors, or for merciful consideration in cases of distress, and those which by the law of nations it is entitled to support by an armed power. That these distinctions are not always clearly drawn, and that actual force is sometimes the criterion instead of legal enforcibility, may be granted. Such defects are the natural result of the want of any objective standard of law among nations. The historical study of private law fúrnishes abundant illustrations of the same defects there. To determine what the unwritten law of nations is, we are compelled to fall back upon the general opinion of jurists and upon usage. But still the law of nations, with all its actual defects, is as truly law, which any one subject of it may require any other subject to obey, as the unwritten law of a single people. |